Means v. Yeager
| Decision Date | 24 January 1896 |
| Citation | 65 N.W. 993,96 Iowa 694 |
| Parties | MEANS BROTHERS v. JOHN YEAGER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--HON. D. R. HINDMAN, Judge.
This action was brought to recover three hundred dollars as compensation to the plaintiffs for selling a farm for the defendant. There was a trial by jury, and a verdict for the defendant. Plaintiffs filed a motion for a new trial, which motion was sustained, and defendant appeals.
Affirmed.
Jordan & Brockett for appellant.
J. R Whitaker and S. R. Dyer for appellees.
I.
The plaintiffs had no written authority to sell the defendant's farm. They claim that, being engaged in the real-estate business, the defendant verbally requested them to make a sale of his farm, and in pursuance of that request they found a purchaser, who bought the farm, and they claim that they are entitled to a reasonable commission or compensation for their services. The defendant, by his answer, admitted that the plaintiffs were in the real estate business, and denied every other allegation in the petition. W. B. Means, of the firm of Means Bros., plaintiffs testified as a witness that the defendant put the sale of his farm in the hands of plaintiffs. The farm was sold to one Hannah. He testified that the defendant stated to him that he had left the farm with Means to sell. The defendant testified that he at no time authorized the plaintiffs to sell the farm. And a son of the defendant testified that he had a conversation with W. B. Means before the sale, in which Means stated that he did not have the selling of the farm. It will be seen from the above statement that there was a strong conflict on the question of fact at issue.
II. Within three days after verdict, and on the fourteenth day of January, 1893, the plaintiffs filed a motion for a new trial which set forth the grounds therefor as follows: "(1) That the verdict of the jury is contrary to and in conflict with the evidence; (2) that the verdict of the jury is contrary to and in conflict with the instructions of the court; (3) that the verdict is not sustained by sufficient evidence; (4) that the verdict is contrary to law." This motion was overruled. At the same term, and on the twenty-eighth day of January, 1893, the appellees filed a motion for a new trial upon the ground of newly discovered evidence, and on the twenty-first day of August, 1893, they amended that motion. The motion, as amended, came on for hearing at the October term, 1893. If the filing of the motion after three days and during the term was allowable, then the party filing the motion had the right to amend it later on, provided the amendment was upon the same ground as the original motion for a new trial on the ground of newly-discovered evidence. The amendment in this case was nothing more than an additional affidavit of newly-discovered evidence. See Sowden v. Craig, 20 Iowa 477; Dutton v. Seevers, 89 Iowa 302 (56 N.W. 398). Counsel for appellant insist that the motion for new trial on the ground of newly-discovered evidence should not have been entertained by the court, because it was not in the form of a petition, and reliance is had upon section 2838 of the Code, which fixes the time within which motions for new trial must be filed. We do not think the record before us authorizes this court to determine that question. It does not appear from the record that the district court made any ruling on that question. It is true that the following language is found in appellant's abstract: "That at the October term, 1893, of said court, Hon. D. R. Hindman, judge, the attorneys for the appellees called up their motions herein referred to for a new trial for submission to the court; that the court, after inspecting the record, ruled that the appellant must appear to said motion; and that the serving of the notice was not required by law,--to which ruling the appellant at the time excepted." The transcript of the...
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